Excerpt:.....driven in contravention of section 42(1)--whether under section 123(1) only owner who drives motor vehicle made punishable--expression 'whoever' in section 123(1) whether refers to owner of motor vehicle and not to driver who is not the owner--distinction between sections 42(1) and 123(1).;the language used in section 123(1) of the motor vehicles act, 1939, is very much wider than the language used in section 42(1) of the act. whereas section 42(1) imposes an obligation upon the owner of a vehicle not to use or permit to be used the vehicle save in accordance with the conditions of a permit, section 123(1) penalises every person--toe he a driver or an owner--driving, using or letting out the vehicle for use in contravention of the provisions of section 42(1).;provincial government,..........42(1) read with section 133 and under sections 22(1) and 38(1) read with section 112 of the motor vehicles act. it was the case of the prosecution that the accused, who was a driver of motor vehicle no. bmw 3134, drove the vehicle with six adults and two children from parali to satara, a distance of seven miles, having agreed to receive from each of the passengers six annas as fore for the journey and had thereby contravened the provisions of section 42(1) read with section 123 and sections 22(1) and 38(1) read with section 112 of the motor vehicles act. at the trial, three witnesses were examined for the prosecution. they were j.s. ankale, a survey mamlatdar, pandurang shantaram karkhanis, resident of satara, who had gone to parali, and s.n. sohani, inspector of motor vehicles......

Judgment:

Shah, J.

1. This is an appeal against an order of acquittal passed by the Judicial Magistrate, First Class, Satara, in Criminal Case No. 949 of 1955. The accused Balasaheb Baburao Shirke was charged before the learned Magistrate for offence under Section 42(1) read with Section 133 and under Sections 22(1) and 38(1) read with Section 112 of the Motor Vehicles Act. It was the case of the prosecution that the accused, who was a driver of motor vehicle No. BMW 3134, drove the vehicle with six adults and two children from Parali to Satara, a distance of seven miles, having agreed to receive from each of the passengers six annas as fore for the journey and had thereby contravened the provisions of Section 42(1) read with Section 123 and Sections 22(1) and 38(1) read with Section 112 of the Motor Vehicles Act. At the trial, three witnesses were examined for the prosecution. They were J.S. Ankale, a Survey Mamlatdar, Pandurang Shantaram Karkhanis, resident of Satara, who had gone to Parali, and S.N. Sohani, Inspector of Motor Vehicles. Mr. Ankale stated that he entered the vehicle driven by the accused from Parali and it was his 'understanding' that he was to pay the fare at Satara after completion of the journey. In cross-examination he admitted that he had no talk with the driver till the vehicle was stopped by the Motor Vehicle Inspector. Mr. Karkhanis stated that he had agreed, to pay six annas as fare and that he offered to pay the fate to the driver when he entered the vehicle, but the driver told him that he would take the fare after reaching Satara. Mr. sohani deposed that he had stopped the motor vehicle driven by the accused for 'checking purposes' and he found six adults and two children beside the driver in the vehicle and that the passengers had contracted to pay six annas as fare for the journey from Farali to Satara. The accused denied having committed any offence. The learned Magistrate was of the view that the accused had not accepted any hire, even though there was an agreement to pay hire. He, therefore, held that no offence was committed under Section 42 read with Section 123 of the Motor Vehicles Act because the fare was not accepted by the accused. The learned Magistrate also expressed the opinion that even if the agreement to accept the fare amounted to a breach of the provisions of Section 42 read with Section 133 of the Motor Vehicles Act, the accused could not be convicted, because he was a driver of the vehicle and not the owner thereof, on the view taken by him, the learned Magistrate acquitted the accused and against that order the State of Bombay has appealed.

2. Section 42 of the Motor Vehicles Act which occurs in Chapter IV dealing with control of transport vehicles, provides, in so far as it is material: 'No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or Provincial Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used.' A 'transport vehicle' is defined in Section 2, Clause (33) as

'a public service vehicle, a goods vehicle, a locomotive or a tractor other than a locomotive or tractor used solely for agricultural purposes'. The vehicle BMO 3134 driven by the accused was described as a 'goods truck' in the complaint, and no contest appears to have been raised in the Trial Court against that description. The vehicle driven by the accused, must, therefore, be regarded as a 'transport vehicle.'

3. There is no dispute that this vehicle was driven by the accused on the relevant date, it is also found by the learned trial Magistrate that the passengers had agreed to pay fare for the journey. Even if there was no agreement to pay fare for the journey the vehicle being a goods vehicle, which could not be used as a vehicle for transport Of passengers, a breach of the terms of Section 42 was committed. Section 42(1) undoubtedly imposes an obligation only upon the owner and upon no one else, to use or permit the use of the vehicle in ac-cordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority. But Section 123 penalises every person who drives a motor vehicle or causes or allows a motor vehicle to be used or lets out a motor vehicle for use in contravention of the provisions of sub-section (1) of Section 42. The language used in Section 123(1) is very much wider than the language used in Section 42(1). Whereas Section 42(1) imposes an obligation upon the owner of a vehicle not to use or permit to be used the vehicle save in accordance with the conditions of a permit, Section 123 (1) penalises every person, be he a driver or an owner driving, using or letting out the vehicle for use in contravention of the provisions of Sub-section (1) of Section 42. The accused being a driver of the motor vehicle committed a breach of the law in driving the vehicle in contravention of the provisions of Section 42(1) and he must, therefore, be regarded as having incurred the penalty provided in Section 123(1),

4. Mr. Karnik, who appears on behalf of the accused, submits that under Section123 only an owner can be guilty of using or letting his motor vehicle for use in contravention of the provisions of subsection (1) of Section 42. We are unable to accept that submission. The expression 'whoever drives a motor vehicle' is not limited by any express provision made in the section or by necessary implication thereof only to the owner of the vehicle, and in taking that view we are supported by a considerable body of authority. In provincial Government. Central Provinces and Berar v. Mohanlal (A) a Division Bench of the High Court held that a driver of a motor vehicle is liable to be convicted of an offence under Section 123(1) of the Motor Vehicles Act if he charges fares higher than those sanctioned by the Regional Transport Authority. Mr. Justi e Pollock, who delivered the judgment of the Court, observed in dealing with a contention similar to the one which has been advanced before us:

'Section 42(1) applies only to the owners of transport vehicles, but Section 123 applies to anyone who drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions Of Section 42(1). The provisions mentioned in Section 42(1) are the conditions of the permit granted by the Regional Transport Authority. Section 123 is clearly much wider than Section 42 (1) ..... .''

The same view has also been taken by the Calcutta High Court in Chandra Deo Singh v. The State 59 Cal WN 787. In that case it was held that the driver, who took a motor Vehicle out of the route mentioned in the valid permit, was held to have incurred the penalty prescribed by Section 123 (1) of the Motor Vehicles Act It was observed in that case that a driver other than the owner who drives the motor vehicle in contravention of the terms of the permit is liable to be punished under Section 123(1). A similar view has also been taken by the Madras High Court in Pubic Prosecutor v. Jevan 43 Cri LJ 49: AIR 1941 Mad 845 (C) and by the Punjab High Court in Teja Singh v. The State, .

5. Our attention was invited to a judgment of the Allahabad High Court, Bansraj v. State : AIR1956All27 in which it was held that under Section 123 of the Motor Vehicles Act a driver, who was not an owner, could not be punished for use of a motor vehicle in contravention of Section 42(1) of the Act. It was observed in that case that an owner

'can also drive, and the words 'whoever drives' are meant to apply to an owner who himself drives to contravention of the provision of Section 42(1). What is meant by Section 123 is that the owner is guilty whenhe himself drives the motor vehicle or causes or allows it to be driven by a driver. It is a mistake to think that the section punishes both the owner and the driver of a vehicle; really only one person is to be punished and that is the owner himself.' With respect, we are unable to accept this interpretation of Section 123 of the Motor Vehicles Act. The Legislature having penalised driving of a vehicle by every person in contravention of the terms of Section 42(1) of the Act, it would to contrary to the plain internment of the language used in the section to hold that by the expression 'whoever' it was' intended by the Legislature to refer only to the owner of the vehicle and not to a driver who .is not the owner.

6. The case against the accused for the offence under Section 22(1) and Section 38(1) read with Section 112 of the Motor Vehicles Act has not been pressed before us.

7. On the view taken by us, we set aside the order of acquittal and convict the accused of an Offence under Section 42(1) read with Section 123 of the Motor Vehicles Act and order that the accused do pay a fine of Rs. 5/-.